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What Is The Legal Impact Of Acknowledgements?

Often, in the midst of a disagreement, we find ourselves reducing things to writing. As attorneys, we often consider this as the most useful or dangerous of situations. Specifically, when admissions are being made and the parties to the dispute are not even aware that this is what they are doing!

Let’s be practical about this. We often see correspondence between people whether in an email, SMS, Facebook or instant message “…I will pay you….” On the flipside of the coin – often people ignore invoices or payment demands. This is equally problematic.

The implications if you reply or state that you will do something

Firstly, it does not matter how this is done or which platform is used. The Electronic Communications and Transactions Act 25 2002 as amended (ECTA) allows for the admission of documents, in court, which is of electronic origin on the same basis as documentary evidence.

The courts are facing an increase of evidence produced which is of an electronic nature. This includes communication such as emails/ WhatsApp messages/ social media communications albeit Facebook/ Instagram.

The problem is, if you state anything that could be construed as an admission or acknowledgement that the other person has a claim then this could be used as evidence in a court of law.

So, what is the problem of not saying anything at all?

In law, there is a common law presumption that when someone states that they have a claim against you and you do not respond, you agree.

So, be careful not to say anything at all.

Without prejudice

Most people are aware of or have heard that marking correspondence as “without prejudice” keeps it off the record. Well, not always.

For the without prejudice privilege to apply and to protect communications or information from being used in court, the following must be present:

An admission or statement must be made,

In the course of settlement negotiations,

[as a] Genuine attempt to settle the dispute (in other words it cannot be used to conceal facts or evidence and so obstruct justice ).[1]

A without prejudice offer during settlement negotiations cannot be an admission in court by the party making it. The offer is only admissible if the parties are required to prove that an offer of settlement was made at all.

In support of this, in a case in the former Transvaal Provincial Division (TPD) (now called the North Gauteng High Court if seated in Pretoria and the South Gauteng High Court in Johannesburg) the court held that:

“Negotiations conducted without prejudice, are of course, designed to resolve disputes between the parties and if the negotiations result in a settlement then logically evidence about settlement and the negotiations leading up to it should be available to the trial court because the whole basis of the non–disclosure has fallen away”.[2]

This means that in some instances without prejudice communications can become admissible evidence in court, losing their privilege regardless of whether or not all documents have been marked accordingly.

A more pressing problem arises when a communication aimed at settlement deals with other issues as well. In this case, the privilege only covers the part of communication containing the admission or concession aimed at settlement.[3]

Another statement or admission within the correspondence can be quite irrelevant to settlement negotiations, which means that statement will not be entitled to privilege and therefore not protected as such.

Next Steps

If you find yourself in a dispute with someone, it is advisable to contact an attorney to advise you on a response from the start of the matter.

DM Kisch, IP law specialists

As South African domestic and global markets become increasingly competitive, businesses wishing to grow are increasingly forced to innovate, improve products and differentiate themselves from a host of competitors.

As one of South Africa’s leading intellectual property law specialists, DM Kisch offers a combination of skills, commitment and experience in the protection and management of intellectual property, from creation, protection and commercialisation to litigation.

Established in 1874, DM Kisch has a long and distinguished history in intellectual property law, with the experience and understanding of the complex and diverse needs of business and society at large to deliver effective solutions to clients.

DM Kisch, with offices in Johannesburg and Pretoria and an international network of intellectual property management specialists, offers a focussed and dynamic team with specialised capabilities and expertise to deliver the best solution for clients.

Assignment of copyright – Author of a copyrighted work is the first owner in most instances and has the right to assign copyright in the work to another person

Licensing – Copyright license undertaking by the copyright owner not to sue the party, which holds the license

Litigation

Copyright is infringed when there is unauthorised copying, reproduction or adaptation of a substantial portion of a copyrighted work.

At DM Kisch, we conduct all intellectual property litigation on behalf of clients, including all patent, trade mark and copyright litigation, anti-counterfeit litigation, litigation relating to intellectual property licences, unlawful competition and passing-off. We also act for clients in laying or defending Advertising Standards Authority (ASA) complaints.

Licensing
Intellectual property, such as patents, designs, trade marks, copyright, trade secrets and know-how, can be licenced to third parties (licensees) in return for some sort of remuneration.
Ownership of the rights are retained by the licensor. An owner authorises the licensee to use or apply the rights in terms of a licence contract.
DM Kisch Inc can assist with the negotiation and drafting of licence contracts, together with our commercial department, advising on deal and tax structuring.

Branding
At all times, trade marks should be protected in the manner in which they are used. Logos are also protected under copyright and it is essential to ensure you are the owner of the copyright. The commissioning party will not automatically hold copyright created by third parties.

Cost

Contact via email or phone for a quote

Location:

Offices in Pretoria and Johannesburg with an national and international applicabilities.

Labour Sense

The costs of legal advice and legal action are expensive. Small and medium sized businesses understand that they may require professional help with regard to dealing with various legal proceedings. Unlike the traditional way of obtaining legal assistance by calling on an attorney and being billed by the hour, Legal Sense will provide R250 000 worth of legal work from only from R300 per month.